UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4009

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
RANDY GREENE,
Defendant - Appellant.

On Remand from the United States Supreme Court.

(S. Ct. No. 04-8009)

Submitted:

September 30, 2005

Decided:

November 30, 2005

Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Megan J. Schueler,

Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, W. Chad Noel, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM:
Randy Greene pled guilty to possession of methamphetamine
with intent to distribute, 21 U.S.C. 841(a) (2000), and was
sentenced to a term of seventy-eight months imprisonment.
affirmed his sentence.

United States v. Greene, No. 04-4009, 2004

WL 2126766 (4th Cir. Sept. 24, 2004) (unpublished).

Court

subsequently

We

granted

certiorari,

vacated

The Supreme
this

courts

judgment in light of United States v. Booker, 125 S. Ct. 738

(2005), and remanded Greenes case to this court for further
proceedings.

For the reasons explained below, we affirm his

sentence.
Greenes sentence was imposed before Booker and its
predecessor, Blakely v. Washington, 542 U.S. 296 (2004), were
decided, and he did not raise objections to his sentence based on
the mandatory nature of the sentencing guidelines or the district
courts application of sentencing enhancements based on facts he
did not admit.

Therefore, we review his sentence for plain error.

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
When Greene was arrested, law enforcement officers seized
methamphetamine, around fifty grams of marijuana, small amounts of
prescription drugs, and thirteen firearms from Greenes home.
Greene made a statement in which he admitted selling 112 grams of
methamphetamine.
officer,

Greene

In his presentence interview with the probation

again

admitted

responsibility

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for

these

drug

quantities,
determination

and

he

that

did
he

was

not

contest

the

district

responsible

for

224.051

courts
grams

of

marijuana equivalent, which gave him a base offense level of 26.

U.S. Sentencing Guidelines Manual 2D1.1(c)(7) (2003). Greene did
contest the two-level enhancement for possession of a firearm
during the offense; however, the court overruled his objection and
applied the enhancement pursuant to USSG 2D1.1(b)(1).
resulting offense level was 28.
category I.

The

Greene was in criminal history

His guideline range was 78-97 months.

Because

Greene

admitted

selling

112

grams

of

methamphetamine, a quantity that in itself is sufficient to support

the base offense level of 26 used by the district court, see USSG
2D1.1(c)(7) (50-250 grams of methamphetamine), we conclude that
no Sixth Amendment violation occurred when the district court
adopted the base offense level recommended in the presentence
report.

Although Greene challenged the two-level enhancement for

possession of a firearm, elimination of the enhancement would only

reduce the guideline range to 63-78 months.

Greenes sentence of

seventy-eight months imprisonment is thus within the range that

would apply based only on facts that he admitted.

Consequently,

the sentence imposed did not violate the Sixth Amendment.

United

States v. Evans, 416 F.3d 298, 300-01 (4th Cir. 2005).*

Greene does not claim that the district court erred in

applying the guidelines as mandatory. In any event, the record
does not reveal any nonspeculative basis for concluding that the
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Accordingly,
district court.

we

affirm

the

sentence

imposed

by

the

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED

district court would have imposed a lower sentence under an

advisory guideline scheme. See United States v. White, 405 F.3d
208, 223 (4th Cir. 2005).
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